Andhra HC (Pre-Telangana)
Syed Fatahuddin vs Golla Shadrak And Anr. on 5 October, 2004
Equivalent citations: 2004(6)ALD562, 2004(6)ALT753
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This C.M.A, is filed challenging the order, dated 8.3.2004, passed by the Court of Principal Junior Civil Judge, Bapatla, in an application filed under Order XXI, Rule 58 C.P.C.
2. The 1st respondent filed O.S. No.60 of 1998, in the Court of Principal Junior Civil Judge, Bapatla, against the 2nd respondent, for recovery of some amount. The suit was decreed and the decree became final. Since the 2nd respondent did not comply with the decree, the 1st respondent filed E.P. No.95 of 2002, and got attached, an item of immovable property. The appellant filed E.A. No.416 of 2003, under Rule 58 of Order XXI, raising objections. According to him, the attached item of property was gifted to him by the 2nd respondent. During the enquiry into that application, the appellant sought to rely upon a document, dated 27.3.1996. The 1st respondent raised an objection as to admisslbility of the document on the ground that a gift conveyed through a written document, even by a Muslim, needs to be registered. The executing Court sustained the objection. Hence, this appeal.
3. Mr. Pratap Narayan Sanghi, learned Counsel for the appellant submits that the 2nd respondent gifted the property orally, and the document in question, has the effect of only confirming the past transaction, and is not a gift deed by itself. He submits that when a muslim is entitled to gift an item of immovable property, orally, a document, evidencing it, cannot be required to be registered.
4. Mr. M. Seshatalapa Sai, learned Counsel for the 1st respondent, on the other hand, submits that the appellant did not plead that the property was gifted orally, and the sole basis for his claim was the document in question, which admittedly was not registered. He submits that the order under revision does not call for any interference.
5. The appellant is a third party to the execution proceedings. He made a claim to an item of property attached during the course of execution. He pleaded that the Judgment debtor gifted the said item of property, and he relied upon a document, to substantiate his claim. He pleaded that the gift was oral.
6. It is true that a muslim is entitled to gift an item of immovable property orally, and that the provisions of Section 123 of Transfer of Property Act (for short 'the Act') do not apply to the same. To prove such oral gift, the ingredients, such as, the acceptance of the gift, by the donee, delivery of possession, etc., need to be pleaded and established. Some times, any document making a reference to such an oral gift may also be helpful. In Mahaboob Saheb v. Syed Ismail and Ors. , , this principle was affirmed. The situation is comparable to oral partition of joint family properties, followed by notes of partition.
7. However, where, a gift is made by a muslim, through a written document, it would become operative only if it is registered. By opting to gift a property, through a written document, a muslim, virtually sacrifices the exemption granted to him from Section 123 of the Act. In Inspector General of Registration and Stamps, Government of A.P., Hyderabad v. Smt. Tayyaba Begum, AIR 1962 AP 199, this Court held that once the gift made by a muslim is evidenced by a written document, registration thereof is mandatory. In applying this principle, a close scrutiny of the facts, need to be undertaken. If the document, by itself, brings about the transaction of a gift, registration becomes mandatory; and if it does nothing more than recording an antecedent oral gift, registration does not become necessary. The oral gift becomes operative, independent of any subsequent evidence, recording the same.
8. In the instant case, the appellant specifically pleaded in his application that he was gifted the property on 27.3.1996. The document in question is of the same date. Further, the document does not refer to any past transaction. It reads that by itself, it purports to gift the property in question. Therefore, the principle laid down by this Court in Inspector General's case (supra), squarely applies to the facts of the case. The executing Court sustained the objection, by following the said decision. Hence, no exception can be taken to the order under appeal.
9. Hence, the CMA is dismissed. There shall be no order as to costs.